Skip to main content

tv   Politics and Public Policy Today  CSPAN  October 22, 2016 4:00am-6:01am EDT

4:00 am
activities. it wasn't something -- as soon as we got the french got rid of religion as they thought after the revolution, in which the first secular state they beheaded 17,000 men, women, and children in public. and so it didn't seem as though it was going to benign. but as soon as they created a new religion, the nation. and the nation pointed out, here we come to miniaturization, in the late 19th century, i hit british historian. said that the new nation state the culture -- the emphasis on culture, ethnicity and language in the nation state will make it very difficult for people who did not fit the national profile and with accuracy, he said in some cases there could be
4:01 am
enslaved or even exterminated. we've seen that and it's what we've been thinking of and it's what we dread. so let's be triumphant about either religion or secularism. we're meeting seeking creatures. we try and discover meaning and we also miniaturize, especially, as the world gets more complex, perhaps, the moment we need to miniaturize psychologically. let's be aware of that. >> briefly, please. >> if we are going to determine another meeting and other -- so i think we have to talk about centralization of islam, as well. because we complain about polarization of islam. we have been discussing this issue of almost one century. but now, unfortunately, it's -- it has become a topic of an
4:02 am
issue of second laization. so what are we going to do with religion. what are we going to do with islam. what are we going to do with islam in european countries. as you said, i was. >> it's very extremely important, we have to deal with it. >> three points, one is muslim world, does not see itself necessarily as the muslim world as in when we meet each other,
4:03 am
we speak with each other, we have a lot of hatred and now we're friendly, we don't see ourselves as almost united. there's not such a thing. we see ourselves in our nationality and different point of references. the muslim world does not see itself as it's been referred to and does not experience ets in that way. we love each other, we hate each other. we annoy each other on that second. maybe going to -- going back to the french the crew said and the spanish occupation is too long. politics has an immakt on what's happen. -- has an impact on what's happening. when you look at iraq it is destroyed right now. it is utterly destroyed. you cannot separate that
4:04 am
destruction in america, in that destruction from the anger and the hurt and the pain that is feeding into it. it is, indeed, interrelated, i would argue and push towards politics what has happened right now rather than the historical one. and i do think there is -- we all need to reflect on ourselves. the western world needs to reflect, about its own meaning of freedom and own meaning of liberty and all of that. because these values are being threatened right now by the west within the west. and i do believe muslim world is -- does need to be forced to -- not force, does need to reflect on itself as well in this point of identity and that's to the point of all of these things, there does need to be self reflection and how do we come out of it. it is a point of intention right now and we're all part of this
4:05 am
cocreation of it. what's going to happen, i don't know. it's a problem of identity. -- it is a problem from lifing in the world. it is partly has been basically landed on them in recent times. within our lifetime. it can change the map as we know it. even in this country it can play a very important force in terms of the kind of politics that
4:06 am
that will dominate. it's not just about understanding. it really is a bigger political problem and in some ways, i think, we're at the point where, you know, these kind of identity politics is a problem for everybody. and it requires much much bigger, much bigger solutions going forward. so if i were to say, you know.
4:07 am
>> many things have been told about islam aphobia. in the end it's a reflection of the polarization and being intolerant. what we made about the failure of secularism, which i would love to have discussed for longer time because i really do think -- that's not wanting your culture it's about coexist tense. but when we come to islam
4:08 am
aphobia, i think we should also be thinking about how this radicalism is going to a stage where we can talk about issues. otherwise it's -- today it's islam aphobia but there are many phobias within the culture. >> you're going to applaud them, we're going to move stage right, we're then going to pull down a screen for a three minute sneak preview of a video, we've been preparing here as part of our effort to debunk islam phobia in the united states. you have the hashtag, which is beyond islam phobia, this is not going to be distributed yet broadly except for the television cameras at the -- that are at the bag, and we're
4:09 am
still going to make some edits and changes to this. we'll actually take your advice, make this an interactive conversation both about the panel what you've heard today. also any additional ideas that you would have for this three minute video of things we ought to be saying about muslims around the world. round of applause for our panelis panelists.
4:10 am
4:11 am
♪ ♪
4:12 am
now conversation from a group called the constitution project on government surveillance and the proper
4:13 am
balance between security and civil liberties. >> i want to welcome you all here today. i want to say how pleased we are to be able to cosponsor this event with google. they've always been a terrific partner and we hope to continue to partner with them on many other things. i also want to thank all of our panelists, but i want to thank jake who is constitution project expert on these issues and whose brain child this event is and he is going to step up here, now, jake, where are you. there he is. and give you some more details on the event, but, again, thank you for attending.
4:14 am
>> from google, senior privacy policy council. i promise i will be brief, thank you for everybody for coming here today. we think it's an important discussion to be having and clearly there's going to be an ongoing debate about the issue that we're talking about. and we believe there's a role for congress to play in fashion appropriate policy solutions around this collection of this information. again, thank you all for attending and we're on this -- we're looking forward to this
4:15 am
discussion. >> hello. thank you everyone. we're in sort of unprecedented age of collection and surveillance, one of our panels likes to refer to as the golden age of surveillance, the conclusion project wants to examine not just how we can limit collection, but also important areas of post collection reform opportunities. and what we see as one critical component of this post collection form is for intelligence surveillance, especially in the post 9/11 world without the wall. the wall being the legal administrative barriers between different agencies and between intelligence agencies and law enforcement that existed previously to 2000. this was removed after 9/11 to facilitate information sharing to sort of what we refer to now
4:16 am
as giving -- giving the government the ability to connect the dots. but this goal has also led to an unexpected blending of law enforcement which typically and intentionally has been far more restrictive in surveillance capacities which has been treated in a much more loose manner in terms of the restrictions that exist. what we would like to ask is can we create instead of the law chain link fence to replace it, something that can permit to degree but also restore the type of use restrictions and limits on law enforcement use through post collection reform than we have previously. washington, d.c. office, he leads the firm global cyber
4:17 am
security. he's also the firm's national security practice group, a member of the and prior to his service at nsa. thanks for focusing on issues like digital privacy. from writing the peace at the constitution project that's on law fair, a chain liked fence which is really what inspired
4:18 am
him to organize this event and it's worth a read if you haven't. >> so no doubt, there's been a great deal of focus on intelligence collection. i think there's been relatively less intention paid to the post collection treatment of intelligence, how is information used, how is it shared. how long is it retained. we have had a few flash points in the public discourse to think about queries of information. to think about the use of intelligence and criminal prosecutions. but by and large, issues about use, sharing retention, are a little less sexy than the collection issues that have dominated the headlines. given that we're in an era of data, era of iot objects, collecting object, area of social media clearly use is data in intelligence is the topic for today we couldn't have a more qualified panel with us. let me introduce them and we'll get started.
4:19 am
immediately to her lift, peter is the golden age of surveillance guide, in case you caught that reference. he's also a senior fellow with the future of policy form. peter served as a member of one of five members of president obama's review group on intelligence and communication
4:20 am
technology. sharon, serves as the executive director of the privacy and civil liberties oversight board since september of 2013 right when the action started. sharon previously ais joining the board. she served for eight years as senior council at the constitution project, so very familiar with these issues. while she was there, she worked on a wide variety of matters, including privacy and civil liberties, cyber security and government secrecy issues, she's served as a member of the subcommittee for the department of homeland security, data privacy and integrity advisory
4:21 am
committee. focus on surveillance, privacy, you're welcome we kept you busy for the past years, prior to joining the aclu, nina worked in the chief of staff's office concentrating on national security and civil rights issues. she's worked as adjudicator for civil rights at the the department of agriculture and was an investigative council with the house oversight and government reform committee. so judging by those backgrounds, you can see we have an amazing array of perspectives and experience. with that, why don't we get started. most of you know the intelligence community has considered post collection protection for u.s. person information in the form of something called minimumization procedures. they're designed to minimize, as the name suggest, the collection, retention, dissemination of u.s. person information. these sorts of things that are
4:22 am
required by statute and by executive order. two of the most relevant places where they are required is section 702, which we'll talk about in a few minutes and executive order, 1, 2, 3, for other types of collection, maybe to make sure we're all on the same page and give us a baseline. could you provide us a sense of what those authorities are and what are the basic built in civil liberties and privacy protections for things like section 702 and executive order 12333. >> thank you to everyone being here and for the invitation. we want to make sure we're starting with the baseline.
4:23 am
designed to minimize the u.s. persons, we start with 702 where we're meant to be targeting foreign persons outside of the united states with the assistance of u.s. providers, these are people that are foreigners outside the united states. there's two ways that we do that collection, there's the one that's been referred to as prisonism. this is where we're going to the u.s. providers, the other one is referred to upstream and this is where we're doing this on sort of the backbone of the internet with the assistance of those u.s. providers. there are for upstream also, we only retain the information for two years. in the prisonism, the queries can be done. but those have to be done, if we've articulated what the -- that we expect to receive in
4:24 am
foreign intelligence. based on recommendations, i think sharon will probably talk about, we've made some of those requirements more explicit, and the most recent set of minimumization procedures. as a way your son last year, as we reported in the transparency report, was issued in may 2016. we did t in the metta data context, it's noncontent data. we did roughly 2,300, 23,000 queries. for 702 prisonism, the retention is five years and we have strong
4:25 am
compliance program and we have a reporting process, when there's a problem report those and we remediate it. often will say if you have incidents, you're not complying, you must not be doing the right thing. a strong compliance program, you want to make sure people are reporting it. if you have zero compliance since then, you will have totally ineffective compliance program. we want to sort of set the stage to understand that when folks have incidents that they're reporting those, they're all human, we make mistakes, that's an important one. executive order 12, 333. slightly different process, we're collecting outside the united states against u.s. persons and generally there are no queries in this. there are few exceptions. >> against nonu.s. >> there are no u.s. person queries, did i get that right? >> i don't want to think -- the government is targeting u.s.
4:26 am
people under 12 triple 3 data. it was collected outside the united states. we're looking at foreign information, a foreign country and unlike in 702, you're not allowed to do u.s. person queries. i say generally, because there are exceptions things like hostage, if you have consent, if you're going into a war zone or where there's battle and you might have military, you know, in concern, you'll want to do that. generally speaking, there's no u.s. person queries. in that instance, or retaining that information for five years. on top of that, then we need to overlay ppd 28 which was issued in january 2014. it basically provides privacy protections to all people around the united states or around the world, excuse me, and that is --
4:27 am
and what that has meant is a couple of things. in that document we're being transparent. we're explaining how we're doing our business, we put forward both collection, reasons we would use bulk information. we explicitly give six of those, terrorism, counter proliferation, threats to military, those sort of activities. in addition, it says that we'll provide comparable productions and safeguard to average foreigners. so we have, in essence, done things retention for that information is explicitly five yea years. before we could have kept the information, in theory, if you thought it was information about foreigners, that's no longer the case. so all of those things put together that you overlay that ppd 28 across 702 and 123333. those are the basic protections that are there and how those
4:28 am
work. >> thank you. i'm sure we'll be returning to some of those topics over the course of the afternoon. peter, if i can turn to you next, you served ton the presidents review group. can you talk a little bit about the focus that you and your fellow members had on post collection issues, how dominant was it in your conversations and recommendations and your thoughts generally. >> thanks. first, it's a word on this golden age that got mentioned twice. that was in the encryption setting, i wrote a paper that was published by the center of democracy and technology about six years ago now. and it's gotten picked up as contrary to going dark. instead of going dark, we have lots and lots of sensors, lots of ways to collect information and then the answers are, if you have the surveillance, how do you build a system to try to stop bad things from happening. and to that extent it seems to be similar to 702. 702 could collect lots of data, upstream could collect a lot of data at the technical level,
4:29 am
there's lots of checks an balances built in, part of the review group going in, we have top and so one coming in from outside to look at how things work. this is in 2013, one thing we found was looking at concrete cases that 702 seemed like quite a useful program. we had real doubts about the section we thought when you target specific people that are not in u.s., that are not u.s. persons and you go through the procedures and the compliance things that exist, that's getting important information for an intelligence national security purposes, that's just one thing.
4:30 am
we also had some concerns so one -- our set of concerns were really about ways is stirs kun kuz sp ke should purge certain information when we find out about it unless there's a clear foreign intelligence value. we said if we find u.s. person information in the database that's 702 has been collected from, then we should purge it u.s. person part and talking to becky before now, it sound like the five-year retention is what applies to that.
4:31 am
chain link fence, there's stuff that can get through chain link fence, as i understand the image, we recommended that evidence against u.s. persons collected under 702, because they were never targeted, you can't target u.s. persons under 702. if you find evidence incidentally. we said we should have a proto lactic rule. we shouldn't use that evidence against the u.s. person. and that -- the idea there is if you want to be paranoid about law enforcement people and everyone has their dial about how paranoid they are. if you want to be paranoid. you can imagine a law enforcement system that says, this is great. let's use 702 to the maximum,
4:32 am
get a huge database with lots of u.s. persons stuff and then just use it to prosecute against u.s. persons. basically you'll be using the foreign intelligence back door to get into this ability to do things against u.s. persons. one way to cut that back is reduce the use of it, you couldn't use it as evidence in court. in this hypothetical. about 702. that might be a fun place to go search if you were law enforcement against u.s. persons. we've collected the it wasn't suppose to happen about u.s. persons, the whole thing targets nonu.s. persons, if you're going
4:33 am
to go into this database about u.s. persons, then you should have a warrant. of the right level of cause of that. talking before the administrative reasonably likely standard, and reasonably likely. there's a fun rule in the sense of law enforcement, there has to be a reasonable showing of it having value because it's a foreign intelligence database. and there's published standards for other agencies, do we know what any other agencies have said on that? >> yes. i bet sharon will cover that. i don't want to take her -- >> okay. it's really complicated.
4:34 am
it's hard to say it right. what i said turns out to be. it might or might not be true this week for other agencies. it's what the review group tried to figure out. >> couldn't be a better panelist to sharon. i think what i would like you to start with, is how is the club talk about post collection restrictions and what recommendations have been made and changed things. >> thanks, and i also want to thank for inviting me to participate today. so for those of you who may not be familiar with the privacy and civil liberties oversight board, our agency is a fairly new independent agency within the executive branch created based on a recommendation of the 9/1
4:35 am
is 1 commissi-- 1 -- analyzing program, which included ten recommendations, i won't go through all of those here today, two of them relevant in today's discussion they did focus on the process of querying information that had already been collected. and as i'm sure you all are familiar, this is looking at once you have the collected 702 data, how can an analyst go through and look at that and when they conduct searches using particular identifiers that may be associated with a u.s. person, we call u.s. person query. this program does not initially target a u.s. person cannot, so
4:36 am
the u.s. persons are collected incidentally because they ore tennessee other end of conversation with a target, for example. first the board recommended that the minimumization procedures should be updated to more clearly reflect the fbi's actual practices, including the frequency with which section 702 data may be searched when making routine queries as part of fbi assessments and investigations. >> the second part of the
4:37 am
recommendation was that some additional limits should be placed on the fbi's use and dissemination of section 702 data in connection with nonforeign intelligence criminal matters and i'll get to that in a little more detail in a moment. alg -- and there the board recommended that queries using should only be permitted if the query is based upon a statement of facts showing that it is reasonably likely to return fourn intelligence information as defined and the board also recommended that their agencies issues guidance. . decent on a fortune of this recommendation stating that she would not extend a new requirement to this effect to meta data queries. as an aside here, the queries can be conducted to the contents
4:38 am
of the respoz -- and so she made that distinction of this recommendation. >> now, for both of these recommendations board members wrote separately to further refine their views and on recommendation two, regarding the fbi, this consisted of additional short statements by each of the members, explaining what they meant by the additional limits they would like to see on the fbi on when they conduct those queries. and on recommendation three with regard to the nsa and cia, there was a further divergence on then chairman nadine to jointly recommend that beyond the text recommendation 3, they would further recommend requiring additional restrictions on u.s. person queries conducted for foreign intelligence purposes
4:39 am
mainly seeking the court approval for united states persons identifiers that could be used for such queries, they wanted to have a neutral and detached judicial officer approve these u.s. person queries. u.s. person identifiers, that's a little bit different from the review group that peter was just talking about in that although both would seek a judicial approval, then chairman and member wald would applied to lower standard than a full probable cause standard and use the same standard that currently applies at the reasonably likelihood to return for intelligence information, whether they wanted the neutral decision maker. board members also wrote separately to explain that they would not which we have
4:40 am
accurately characterized. before i turn this back, i want to pick up a little bit on what has happened since the board made the recommendations. so back in february of this year, the board issued a short recommendation assessment report looking at where we stand on implen mentation recommendations. with regard recommendation two on the fbi, the board board has been implemented. this was done back in november of 2015. the court approved revised updated procedures for the fbi that incorporated changes that were designed to address both parts of the board's recommendation. the first part of the board's recommendation making more clear how frequently they would use these kind of queries, was addressed by a certain footnotes that do appear in the
4:41 am
declassified version. of min mization procedures that were released this past summer and with regard to the recommendation for additional limits and i have gotten this cleared unclassified. >> you can look at the black out and make your assessment with regard to recommendation three, on the cia and nsa, this was also addressed when the court approved min mization procedures for both of those agencies and both of those agencies included additional language designed to
4:42 am
implement the board's recommendation about the standard and the board assessment that did, indeed, meet that those are both available in the declassified version of those procedures that came out this summer, one aside here and the board did assess the recommendation was still being implemented because with the cia as we set in the february report with respect to the queries using u.s. person ie with regard to meta data queries. that will get in the weeds on the standards and nuances of the different agencies, but over
4:43 am
all. >> that's great. thank you, sharon. you've seen these changes being developed and participated or the review group and public discourse over the past few years. and the of course know what the agencies are doing and put out publicly. what do you see is some of the big picture issues coming up when it comes to post collection use of intelligence information from your seat at the aclu. >> first, i want to talk about what's the world that i worry about? what's the word that the aclu worries about. i think when we think about the nsa collection, we worry about a world where there's a whole lot of collection. we're not talking about a dozen e-mails or transactions a year, but on the order of millions, and we worry about those databases being used in part for domestic criminal enforcement right. not to protect national security, not to find information about, you know, upcoming potential terrorist threat, but in your every day
4:44 am
normal criminal enforcement, in which case, generally police will be required to go to a neutral judge and get a warrant demonstrating the problem cause of someone who is actually making it a crime, has been accused of committing a crime. and we worry about all of that happening in a world where even if that information was gained and even if it was used in a criminal court. they don't even know. i think the nsa may have collected this. i would like to challenge it because i think my rights have been worry about. i think we talk a little bit about why i think some of the procedures are inadequate and are leading us closer and closer to this world. foreign intelligence is incredibly broad term.
4:45 am
who may have talked about issues surrounding foreign affairs. first of all, we're dealing with a situation where we're foreign intelligence, i think much broader than the public thinks when they think foreign intelligence, they think stopping terrorist attack and that's not what it means in under many of these authorities. okay. now we have this information, right, and we're going to allow agencies such as the fbi who to run queries on it.
4:46 am
they're running queries on database that include in your normal criminal case. we don't know how many times because despite many requests, we don't have a sense of how many of those type of searches are performed. what we do is that it may be substantial because that data is culminating with other databases. if i'm an fbi agent and i'm beginning an investigation, i might do a query and that query might involve databases that include foreign intelligence information. and then the third layer that we're seeing increasingly come up is, you know, now i worry that not only have you collected the information, you've queried it and you want to use it for in a criminal case, maybe not a criminal prosecution, but maybe to effect something else in my life. but just looking at let's say,
4:47 am
apparently at some point there was a reexamination of doj policy and there's been some notice that, we don't know how that notice is being interpreted and whether, really, those provisions that require notice under section 702 are making sure that everybody who has had information used against them knows that and gets that, so they can challenge constitutional surveillance. in other context, we haven't seen they have an obligation, under executive order, if information through the course of that surveillance is ultimately used in a criminal prosecution, we don't know whether the government takes the position that, yes, they must disclose that to the defendant who can then challenge it. you know, i raised these example
4:48 am
to i say demonstrate the increasing evidence the authorities that have been developed and premised on the idea, we need this information to protect our country against terrorist threats or proliferation and those authorities are increasingly bleeding into every day general law enforcement and prevent against that bleed. it can be easy to dragged and particular authorities and particularly questions. i wanted to start our discussion now with a basic principle and see how folks react to it. when lawyers in the intelligence community think about minimumization procedures, there's a holistic view. that's the legal approach taken. in other words, what's the collection regime at issue, do the restrictions on collection align with the restrictions on use sharing dissemination. in other words, viewing the use of information holistically.
4:49 am
the implication of that, if you have a broader ap which you are -- aperture, and if information is collected in more narrow way, there's more freedom to use that information. i'll be curious to get prospectus. is that how we should be thinking about it. should we be thinking about restrictions on use and sharing and dissemination separate and apart from how it's collected? and if anybody -- would like to start, that's -- general sense, if you would like to start? >> sure, i would say two things, i think looking at the front end for thinking about the back end, so to speak. i think we have to think about not the quantity of information, i think it is relevant that we are not talking about 20 or 30 e-mails a year, we are talking about millions of e-mail and millions of communication transactions over the year. that's relevant because it
4:50 am
increases the likelihood and the implication and the number of people that -- the second thing that's important is to think about is what is the front end protection. the process that you have to go through to collect the information is less than what would be required in a general court. under executive order, the government is not going to abide a neutral arbitrary to say this type of target is permissible. under 702, it is not an individualized review. you have to think about the lack of over site and restriction on the front end which assess the back end and the risk of using the information. i think it is important to think about -- if something we don't have data on. and the type of collection we do. you know lets take a
4:51 am
hypothetical scenario where most of your target comes from a different country. your accidental collection maybe likely is get information of individual families in those countries. if we have hearing procedures that are sort of dealing with this data stuff that may have implications that have whether communities are impacted differently. we should think about whether that's happening. if it is happening, what are some of the solutions? >> yes, absolutely. the wholistic approach is what the board looks at and this comes under a source of the fourth amendment. the board declined to express the opinion as a whole whether there is foreign intelligence as a exception, something that the
4:52 am
supreme court has not applied on but looking on the fourth amendment reasonable to test which is a totality of circumstances tests. that will look on at the collection stage, what is the standard and how high is the bar and what do you need to show and that'll absolutely have an impact when look at the totality of circumstances for when and how the government may access that information post collection. things like query standards are relevant. the board members reached a different conclusion of reasonableness does not necessarily lead all decision makers to the same conclusions. then chairman mcdean and member walsh there is not a individualized determination made of the target that's not a non-u.s. person. when you have a u.s. person query, there should be an individualized determination by a neutral magistrate before
4:53 am
conducting a u.s. person identifier. >> now, member brandon colins looks at this a little differently. the criminal contact and we talked about notice, if it were to get that stage where the government wanted to use evidence arrive from 702, they did recommend where our current policies do not already require the approval of the assistant attorney general, they would require before section 702 information is used in this context. they distinguish where they do not want to create greater barriers and you discover information they would need. at that stage whether to use a criminal prosecution and looking at that kind of analysis. one of this things i just pointed out, the board looked at this and the fourth amendment
4:54 am
noted, the board's role is to look as a policy matter at are we appropriately balancing national security with privacy and civil liberties. test is very much the kind of in query. >> thank you. >> so i think we absolutely use this process today. if we look at other 702 and 12 triple 3 or even if you start of what is now under the u.s. freedom act. we have looked at totalities and applying different safe guards to protect the person's privacy. this question of the uses, it is important to keep in mind there is different tensions where we are holding our community to know that things should ever happen.
4:55 am
that puts a level of incentive to do as much as possible with no intention of some of these possible impact but we are sort of setting this expectation is up and so we want to think about how do we build those safe guards in and then not turn around when the next thing happens and say well, you could have connected these dots because these were here. and so every one of these policy conversations that we have, it is important to keep both of those in your head. we need to have both of these. we cannot have -- all national security without any privacy is left -- it is equally not going to lead us in those place. if we have those conversations. those questions of how do we take those both. i think the wholistic view has been our approach. we see those in u.s. a freedom
4:56 am
act in terms of -- that's one of the first places that we first have started to draw those lines in this context. those are hard conversations. those are hard policy discussions that our policymakers need to have. we want to think about how do we get to build those and where do you make sure that ultimately we are not using foreign intelligence for some of these downstream issues. >> i would like to talk about collection limits in the commercial sector. they get talked a lot about over there and that may shed some light. there is a process of the do not track process. when you are surfing the internet, what do they collect about you and you say please don't track me as we do it.
4:57 am
it turns out the way the internet works now, there is a tremendous amount of collection that just happens in logging your website visits and cookies and making sure that add tertizes are replacing properly. there is an unbelievable amount of collection that did not exist ten years ago and we did not have the internet at some point. you are trying to figure out what it means and more protection of privacy. you get used to pushing it. and i think that part of why we are having this talk of usage under 702 where in a world of sensors and a lot of place of logging for both commercial and non commercial purposes, we are going to have a lot of collections in ways that it did not happen. how often are you going to be on cameras compared to 10 or 20
4:58 am
years ago. there is a tremendous amount of collection as it happens. this project is post collection used discussion. this is what this is really important. in the world of internet of things and there is sensors everywhere and huge baby that happens just because it happens for a lot of reasons. >> this is a good set up for the next question. we have this question of tailoring restrictions on use of sharing or desemination. what are the types of factors folks should be thinking about. is it the nature of the data at issue, is it how the information can be used or not used for certain context. is it the standard freezing for that data, we discussed reasonable probability and probable cause whether is a u.s. person information or non u.s. information. what are the kind of the key
4:59 am
vectors that we should be thinking about that's important for the intelligence community to incorporate in these restrictions. i don't think anybody has a start. >> lets start with you, give it a go. >> all the things you listed are relevant and focusing on one or two that are most important. you know one i think that really ensuring that there is some type of over site whether it is a review. when the government seeks to query information or to use information is important. in the 702 context, there is not a ton of front end judicial over sites. the reality is that they're not at least approving an individual's target. we don't have that initial program that's approved.
5:00 am
when you are talking about u.s. person information that, the government seeks to query that information. it should be going to get a court order for that. i see that as one of the most important restrictions. foreign intelligence, that's awfully broad. we had these conversations during the u.s. freedom act. most people are thinking of terrorism. we need to narrow that definition and hone in on what is the uses that the government thinks are most key and how can we serve cabin of the type of seminations that we are going to have. third, we need to think about whether we have wholesale prohibition on use of domestics. you should have that. we should not be using information that's collected for intelligence purposes for general everyday, you know, domestic law enforcement because we have a process for that.
5:01 am
you know law enforcement goes to court and they get court work and warrants to do that. those are sort of some of the top line things that i think of as reformed issues when we talk about what's important. >> sharon. >> i would say yes to all of those that listed. >> i knew why i like you sharon. >> the nature of the data of this context that when we are talking about difference of collecting content or meta data. everyone here is familiar of section of 2015 and our phone record program, that was meta data. the board did talk about how that also can be highly reviewing of sensitive information and having privacy
5:02 am
implications as well. there is a consensus that people treat content as typically being more revealing and greater privacy implications so content is usually treated differently than meta data. >> what's the front end restrictions and post restrictions and how the information is used. we distinguish again if you have foreign intelligence purposes, it is being collected for that. that's what the nsa and cia is all about. when you bring in the law enforcement function, then you have much more front and center people for the fourth amendment rights. there is criminal procedure rights of this evidence can be
5:03 am
used against them. likely you are going to have different standards, i talked a little bit about how some of the board members of criminal context being implicated. you know whether it is a u.s. person or not. now, this is changed some what with presidential policy directed of 28 that becki talked about a little bit of the issue back in 2014 as a policy matter to provide enhanced protection to non u.s. persons, but typically, historically grounded in the fourth amendment and the fact that u.s. persons are the ones who are recognizing to have fourth amendment rights. we have applied greater protections to information regarding u.s. persons. that has even through continue
5:04 am
to be tb case that u.s. person are considered to have rights. >> i am curious of becky's response. >> first of all, it is sort of nice to have you say something nice about the review group report. you know this was a report where there is a lot of skepticism of our efforts from a lot of civil societies when we started. i think people found some reasons to see some usefulness and a lot of our things have been accepted. the two themes that i think neema and the review group agreed on is we want to be careful of using these data in criminal trials against the u.s. person. we want to be careful of the database being used and searched. those are areas where there are concerns having intelligence criminally leaked. those are issues that deserves discussions. i do want to talk about u.s. -- i have spent a lot of my time, europe is not thrilled with with the nsa surveillance. in europe, they have some concerns. i am going to talk about pd 28 in this context. here is a reason to really be
5:05 am
extra specially careful about u.s. person. one is the fourth amendment applied. beyond that when you thinking of checks and balances and surveillance, you don't want to have your surveillance agency to go after -- it is a bad idea. >> the democratic national committee, so when you have that kind of attack on political opponents, you can could be on a slide of bad things. and, that's especially careful of u.s. persons in terms of checks and balances against political abuse. what's happening with europe the last few years of 2013 especially is european is saying hey, we are people, too.
5:06 am
i am german and british and french, we deserve to be treated as members of a rule of society and not target of u.s. surveillance. have some thoughtfulness. sure go after the terrorist suspects but don't go after the butcher and the baker and the candlestick maker we basically said we're going to expand it to our allies and now germans or french or whatever, have many countries be listed yet? no, countries have been listed. so once there's the right certification but the point i'm heading towards is if we have our post collection debates in
5:07 am
the united states i bet the europeans are going to say, hey, what about us? don't just protect u.s. persons but stop searches for criminal proceedings or for searching more generally. stop those more broadly. and have pretty much the same protections for the european allies as well and i'll not sure that washington is ready for that discussion. i'll not sure people have worked through what would that mean and what is doable about it and maybe you can tell us that we know the answers but i think that europe will push back as part of the 2015. they're very aware.
5:08 am
the european commission is very aware that 702 is up for renewal next year and the u.s. government hasn't even mentioned if you don't like 702 today wait until next year and you can weigh in on the process. it's going to threaten our ability to say u. s. persons only because for foreign affairs reasons we'll have some way to talk to europe about why they deserve the same respect for their sids as the u.s. gives to its own citizens. >> okay. so maybe i'll work my way down. >> all the way to the bottom. >> or all the way to the top. did i hear that you thought we should have something any time we do a query or is it just on u.s. persons? because i'm not sure why we have a foreign intelligence agency if we have to go every time i have a foreign intelligence query i want to do. >> so i was referring to u.s. person queries. i think in the context, i think
5:09 am
that i heard you and others say they don't run them on content. i don't know if we have more information on whether they're run on me at a data but to the extent that they're being run on meta data that's also concerning. >> so i just wanted -- i mean, i understand that. i don't think we want to have an intelligence community where every time we're looking at foreigners outside of the united states that we're going to do a query because you would stop the intelligence community i think largely there. >> the europeans might. >> the europeans might and those are going to be interesting conversations. they have a very different approach to what it is i want to make sure that we're not losing the u.s. persons protections for r that historically that hasn't worked well for other countries
5:10 am
and we want to be thoughtful as we have these conversations that we aren't diminishing the protections that we do have in place for u.s. persons so under 12333 generally speaking there aren't u. s. person queries that are allowed and right now i understand when you look at all the different procedures that we have in place it can be difficult to point to that so department of defense issued new guidelines for generally under 12333 in august. they're being now worked now that we have the broader document and you're not having to back your way through that process but you have to draw a couple of lines. it's not clearly obvious. we're trying to work on the next one.
5:11 am
when we do training that's one of the big training ones. all nsa employees have to take a number of different training courses i take all of that training and i just finished it earlier next week because it's going to expire and it's these really important things. but that is a u.s. person query and a key function. when i get to foreigners if you tell me i can't do any foreign queries, peter, what are are we doing? >> it's something that you will hear. >> yeah, i think that's right.
5:12 am
in the 702 context, 702 we have to have a foreign intelligence purpose against the foreign person outside of the united states. we have to document that. that's one of the requirements put in there not every foreigner is targeted under 702. you have to have gone through that process and it is not the bulk collection on all foreigners everywhere under 702 so we put that -- but because it's not that you have fewer protections around some of the u.s. person inquiries. when we get to 12333 it's a broader collection but then we started to put more controls and safe guards in there. we have an intelligence community designed to protect the united states from my number of different issues and we need to have a discussion as policy
5:13 am
makers about what you want your intelligence community to do. if we're not comfortable with the authorities we have given the intelligence community that is absolutely what we need to be thinking about as a democracy and that's when we have to think about how are the different forms of government really engaging in that conversation? a lot of conversation was had after snoeden about how much does congress really know? those are great conversations and thought pieces we need. not everybody in the united states can have access to intelligence to the level and degree. we won't have any intelligence. the foreign targets are going to go figure those things out. i can't put all the good people of the united states over here and tell you what the intelligence community is doing and then say okay my list of bad guys over here you don't get to know this.
5:14 am
it doesn't work that way. so we have to think about how do we build these in there's a number of overseers in this area. we have the privacy and civil liberties oversight board now. that's relatively new folks here. we have the fisk. we have the director of national intelligence and congressional committees. and then internal at nsa we have a number of folks that are specifically focused on oversight and compliance in addition to the inspector general so one of the questions as we go through the discussions is we should say well are all of our oversight functions working? are we putting -- do we have too many of them? do we have not enough? are people held accountable and responsible for those activities?
5:15 am
i've seen a few times folks say well if i had one more person checking to make sure if this was really the right target then we'll make sure that we're only, we have all the targets correct. it turns out people start to lose accountability the more people up the chain they think are going to find the problem. so we want to think of so how do we design these different activities. >> can i go back? something we lost a little bit in the conversation. i think we lost what a large shift 702 fundamentally was in the term, in the way it approached foreign intelligence collection and how some of the procedures haven't been efficient to protect that shift. you're talking about switching where an intelligence court approved individual targets. and you had to show someone with a foreign power or agent of a foreign power. it's a negatively criteria and you shifted to a program that provided much less on the end
5:16 am
and approving procedures and not the tart. you're able to target them for a variety of circumstances. i think that's very relevant and we think of looking at the word that you used before and the front end before and that affects what you have to do before and affects whether we think queries without the over site and they're appropriate. thinking about whether protections for the nonu.s. persons needs to be higher given the global reality of us sharing information with the foreign entities and not wanting to create a global race for the bottom. i want to make sure that we're not losing and we're in a different moment now in terms of collection and that affects how we think about the programs and whether the protections are sufficient. >> and in the debates and how technology changes the standards, there's two ways to talk about the status quo.
quote
5:17 am
you've correctly said here's why we have it. we used to have warrants and judges and individualized decisions and now we have 702. another perspective is that there are communications between pakistan and otherwise, and now it's through the united states and intercepted through the united states. in the old days that's a 12333 and now it's raised up 20702. to the extent that 702 is about the foreign targets for people that are over seized, you can see it in the standards of what it used to be. because it's being done in the united states, it's lowering the standards.
5:18 am
each side has a good claim for why they have lost something in this new thing that we have seen 2008 and section 702. >> i just want to say one other thing that's changed for the good in this case is the greater transparency now. so the perhaps silver lining or i'm not sure what the best term is on the un authorized disclosure is that there's a public debate. because of that unique context and being a lot of leaked information, the intelligence agency made an extreme effort to try and declassify a lot of information that was previously classified and with the boards report on section 702 we were able to obtain a lot of information and put out a pretty
5:19 am
comprehensive description and we do have in greater commitment to the transparency and the creation of beckys commitment and that she is here on the panel is really, i think a seed change. as we come into this debate in 2017 over reauthorization of section 1702, the good thing to look at is now there's a very informed public debate and how the program actually has been operating and a commitment by the intelligence agency to engage and have that debate and there's still classified details and they're classified briefings to o the over site committees. i think that's also an important change that should be recognized.
5:20 am
>> yeah, there definitely has been a shift to the transparency and there are key facts of information that are miss asking need to have this debate and one of those key pieces of information which becky knows about and is near and dear to my heart is the number of u.s. person that is have it collected under section 702. this is something in the report that they mention they did have the information. it's something that, you know, civil liberty groups are keen to have to have a sense of what is the scope of zmchgs how did that impact on what are the very real rights and implications for the u.s. i would expect that we want to information for some 333 programs. she talks about maybe things have shifted. it would be great do that and is the 12333 problem not as big as i fear and others fear? i think the only way to have that conversation and test the things that we're saying is by having the data.
5:21 am
>> before i open it up, please think of some questions. i will in a moment. i wanted to come back to this since we talked about it and it's up for reauthorization this year and it's really been a flash point in the post discussion and it's amazing how people's reaction that don't think about this vary depending on how the issue is presented to them. at this is the term that we use. it seems like a loophole. on the other hand, we talk to an analyst at the nsa and they say that we have the authority to collect all of this information. i can read it from front to back. i am supposed to. i am behind.
5:22 am
i'm 10,000 pages behind. if i can read this and supposed do that and obligated to do that, how can you tell me why it's the case that i need a warrant to do my work more efficiently? i am curious how do we help the public bridge what are the two groups and whether they're an intervention or a level of standard. you can see how people view them differently, and so i would ask you to think just about or articulate for folks here which direction is micked and why. >> can i just briefly. the review group we finished the report near 2013 and the clubs are fantastic and very large report on 702 happened after
5:23 am
that. >> we have moved to the program and there's no, sir sags for the queries. we have seen the models that we move it, and in many ways that's a different beast zbierly. should we look to the 215 program on the model and queries? >> i think the question goes back to the totality and the approach before and how you look at that and what extent do you want to balance that with a post collection and how you want to and what kind of standards that
5:24 am
you want to create and different people are going to see that differently. >> how would you defend a person on the streets doing a search on my name? >> i don't know that i'm hoping for a conversation like that any time soon. we're relatively new into this construct of transparency with the intelligence community. my job is new. i have been there two and a half years, and we have a officer at cia and these are new rules and figuring out how to be more transparent is going to be an ever changing process. and one of the things rather than sort of as peter said we have looked at and increased the amount of protection because it's under 702 and then the perspective that you decrease and then we just have it under
5:25 am
the fourth amendment. one thing is to talk about the same set of facts and the extent of those are not classified, and we really worked to do that. whether you think that you should have a warrant to do the u.s. person query or not based on sort of how we think about these things, what i think has been really positive is the fact that we're now talking almost about all of the same -- so neiman and i can disagree on this, but it's because of the perspective and not the facts. that's where we want to be because of the transparency. i don't know if i am going to defend if there should be or should not be a warrant. that's what the standard is today. and whether that should be going forward or not.
5:26 am
we can have that discussion and that's a really important aspect of the sort of where we're going in this space. we will have to sort of test how transparent can we so that we're not giving up the methods, but we're able to say okay how do i bring these two -- what appear to be disparent activities and i want to have surveillance and privy and how do we bring those two together and how do we build those? i'm not going to defend one thing or the other, but we're able to have that conversation. >> how would you talk to the analysts and you're saying to interview this stuff and saying that i have to get a warrant to look at it. >> yeah when you explain to an everyday person and say in the
5:27 am
context you're going to get and then use a different standard. i think that when we do that, we have to understand i am an attorney and the in flux has an affect on that. we have seen people say that, and we have seen documentations on the report and knowing that the nsa can reflect that. i think that's one of the reasons that, you know, we have a higher protection and then it's closer to the criminal context because for the person that has the affect, it's the same. the information maybe chilled or used in a criminal prosecution and to the criminal law enforcement and we can't use the reality and the affects can be the same for some people regardless of the method that we're using. >> i think the panel has laid
5:28 am
out and you have becky on one end and some are stuck in the middle. and through all we've been hearing about it. it is security versus privacy. there are factors that i am wondering and peter with the group that you were considering when you're going through the reviews and the impact of the american businesses on a global scale. we have seen, you know, you have the harbor and taking a hit
5:29 am
because of that and the impact of the u.s. representation and the liability on being able to expel the freedom and not having the other countries saying you do this and do that. with that part of the consideration and not the privacy verses security and the other factors. it's maintaining the trust and then trying to stop the leaks. our report is in the world. one of the things is we recommended a process in the white house and adopted it and sensitive intelligence collection for heads of state. there would be a white house process that's more thorough and rather than having at the extreme, a low level analyst
5:30 am
saying, let's go in and head of state, i don't think that it worked that way before and now there is more thorough process before that happen. that's bringing in foreign affairs and other kinds of concerns. our report said not to do that. the united states does do surveillance in the realm of commercial for things like sanctions against iran. otherwise it's hard to enforce sanctions. but it's not used to be for u.s. business. there's been, and if you go through and i have writings but there are numerous ways on which the administration i think is thoughtfully made changes to say, this is how we are trying to have an overall information infrastructure that works for our multiple goals.
5:31 am
and it's not just security and privacy. we have to have an internet that works for free speech and disent and congress and many other things. >> so unlike the group that really that that, our board focused on the national security firms and the policy analysis gt context is meshed up with the fourth amendment reasonableness test. i will note that a number of the board members have engaged with the leader from other countries in the eu and have travelled and spoken in the affairs there and have pointed out in the context and so our nation is trying to take steps to conduct the over sight and maybe we have one up on them as well. >> i don't know where it is to
5:32 am
me, but i will look back for the moment. i don't think that anybody would describe me as the national security person. i think it's all a matter of -- >> and then the amendment and it's trying to make an emotion and the fourth amendment violation and through the tree, is the judge that's hearing the moisten because it's a
5:33 am
constitutional issue. >> it does not allow you to file it and if i don't ever get noticed because the government's interpretation is so narrow, the individual defendant does not get noticed and can't take it to their attorney and the attorney can not file that and saying that the evidence should not be permitted in court because it it was collected unconstitutionally. in that sense, it's a relevant and how the government arrived. and we don't have the legal and say here's how we notice our obligations. and we notice like 215, the government said we don't have notice obligations. i don't know if i've answered your questions but that's how i
5:34 am
think it is really relevant to people affected by the collection. >> i want to talk about something that's becky richards. i was a target of surveillance. >> i didn't understand it until i saw the snowden movie. aid nervous breakdown and then i just ride and did not know what to do. i tried to get lawyers and help and then there's nothing that you can do and then i went to the members of congress and i found out that i did not do anything and i get it. what i wanted to always find out, i found out in my situation. people wanted to be future political appointees have access to this data. is there any way that we can protect that data, on american citizens? and i want to fight that.
5:35 am
they said you're like a rape victim. you need to get some justice. neighbor only justice i can get to s to make sure political appointees, people who want to work in politics are not being targeted. thank you. and if you have any comments, i would be grateful. >> let me reframe the question. i don't think, correct me if i'm wrong. that there is any potential for employees to have access to raw intelligence. you can tell me whether that's there. how do we protect against abuse of intelligence data? >> that's a really important question that we worry about all day every day. we have a number of layers of processes, starting with training, training our employees when they walk in the door with what the authorities are how do we protect those and then having
5:36 am
compliance checks all the way through process. whether it is something as two people have to put their eyes on it before we decide that we want to target an individual for a selection, or whether there are things like the technical post query reviews. a number of the safeguards in place as it relates to specifically, and that's just within nsa. then you have a number of these different oversight organizations that are then making sure that what nsa has said they are doing and those protections are in place. whether it is by congress or now by the privacy oversight board. so there are a number of very specific oversight mechanisms put in play. then making sure that it's consistent with the authorities. we also spend quit a bit of time in our office in the privacy
5:37 am
office. if they have any concerns that either they have done something wrong or they feel someone else is doing so there is a place for people to have those conversations. >> we raise this idea of it being something to avoid. >> i hope what you're saying is a sad story. i don't know the facts of your story. >> we also specifically did a lot of look to see whether there was any sign of political targeting of any of the nsa stuff. we had among our five members, two people with years and years of experience in the intelligence community. and we looked for this. because if we found political tampering, that's super worrisome. we found no evidence of
5:38 am
political tampering. it's something i've written about for years. i found no evidence to think that it was being used that way based on our review. >> and the board's review did not find any such abuses of that kind. >> i think that the question speaks to a broader problem. lack of retres. it is a national security exception. in the u.s., if you have a xhanlt. what are your opportunities for redress? i think that's an area where we need to do a lot more work. their my name is tyler. there is at least some reference
5:39 am
made to internal training procedures. you mentioned post query review. i wouldn't if there is been any conversation about more post talk analysis and the way the date is being used. the main thing you can do aside from just querying it. for all the same reasons that collection has become ubiquitous, presumably they apply to the use of the system. such as the use here's are conducting this analysis are themselves generating data. to actively monitor how these strems being used? apart from things like that. actually doing investigations on how this date is used? thanks.
5:40 am
>> i'll just say that there are a number of different within nsa activity that's occur. also our inspector general goes through and is sort of hook at different ways the information is being used to make sure it is squint the authorities. we spend quite a bit of time. we're part of the senior leadership at nsa. we're not buried somewhere down but i report directly to the director. and we look agent these questions. i have, say, a selector and do i a query is a pretty simplistic approach to intelligence. we want to use the same date analytic that's are being used in the private sector. but we have an equal responsibility to make sure those are consistent. we have a number of different mechanisms at that one level. at the level for the date. a i think your second one had to do with, are we looking at audit laws to see if people are being
5:41 am
consistent with those uses. and there are different situations where yeah, that would absolutely be used. >> so the board did not make any specific recommendations with regard to audits, although that is something we look at. at a higher level, one of the board's recommendations in the 702 report focused on efficacy. it was assessing the efficacy for counter terrorism programs. not just the 702 program but more generally. are you getting what you're for? when you have any kind of privacy intrusion, to make that worthwhile as you balance. the program itself should have some value in getting the counter terrorism, the purpose for which you have this program. >> so at that level, is it
5:42 am
effective? >> i have something more specific. this research, i'm relying on from someone that i didn't check. in question, the consideration of 702 certificate applications, i thought they said something about doing a sample of targeting decisions that would allow the retrospective look. >> yes. >> yes. that's to have the fisa court. the board did recommend in the contech of targeting, that the fisa court should have more information about actual practice. >> that's what i was thinking. >> and it reported the oversight as well as sample tasking sheets and query terms.
5:43 am
it is in the ballpark with the question. somebody going back afterwards and seeing what actual queries are being done. >> thank you. >> yes, sir. >> thank you. and thank you for a great panel. i'm the director of government relations for the american library association. it is the foundation of democracy essentially. if you have the chilling effect, you don't have the intellectual freedom. against that back drop, i've been very interested in the natural tendency of the discussion to dichotomy a little
5:44 am
bit. saying on behalf of the public, show us. becky not unreasonably, and you, with respect to the analysts say trust us. so how do we bridge that gap? so we have a perspective. and i'm asking this question. as someone who has been around washington a long time and run all kinds of issue campaigns and done a little guerrilla fighting, you want to figure out what the other side is saying and how you undercut their arguments. if i were you, i would say, what maximizes trust? well, what is the other side saying? warrants. so my question is, why isn't the intelligence community, maybe it is, sitting around saying how do we absolutely maximize the use of warrants in the process so people trust us more so we won't
5:45 am
to have get a warrant every time we want to query information overseas. in other words, isn't the bridge form divide process from a trusted entity like the courts and therefore why wouldn't we want to use the warrant? >> as a practical matter as was noted, there are 94,000 targets under 702. so as a practical matter, i would agree with you that -- trust us is not an accessible answer. >> for give me. you're asking me 94,000 warrants is tough and that's respect to the u.s. citizen. >> with respect to u.s. citizens. if we're going back to the
5:46 am
queries and for 702, i will just say that there's many different perspectives on it and i'm not going to give it to you one way or the other. i hear what you're saying. we had roughly under 4,500 u.s. person terms that we're used in 2015, so -- >> the tart up stream is 94,000 a year. so you get numbers one and a million for people outside of the united states depending on where you do it. i don't know what's the population of baltimore and washington?
5:47 am
3 million or 4 million? that means three or four people in all of washington are targeted under 702. so appreciate the scale but no u.s. person in washington. >> so if we were in paris. >> it would be ten. that might not be enough in paris given they've some problems there. >> plus each person person would be in contact with. >> throws the targets. but that would be warrants true too. if we had a trap and trace, you would get everybody they talk to. >> absolutely. different protection. >> hi, i am the director of the national program in the third way and one of the drafters of 702.
5:48 am
when we wrote it, we were very careful about the use of foreign intelligence. because the jurisdiction does not include judiciary and use in the law enforcement context, the ways in which congress thought about protections for u.s. persons were not as clear. and were not as well articulated and thoughtfully thought so with the limitations on the intelligence side. i know they've gone back and looked at the case where 702 information was used. but i think concerns about the use in the law enforcement context and the failure to notice and how that information translates, how intelligence without a warrant translates into a law enforcement context where a swarnlt required is the concern that makes most americans really fwhevs the statute. so did they go back and look at
5:49 am
the questions or did you intend to go back and look at the questions of the 702 information and whether or not in the context and then there's a right to the bridge and then the right to travel and then the 702 and then how you were noticed to the person and then sort of related to and when will they release the 12333 report. >> thanks. >> so i will take the second one first. i don't know. >> on the first one as nema said it's to provide the notice and that's to provide notice when the section 702 information is used in a criminal proceeding and as i mentioned and this is an issue that split our board. they all called for additional restrictions on fbi queries that
5:50 am
run across 702 date in the nonforeign intelligence criminal context. so this is collected for foreign intelligence purpose. it was a foreign intelligence crime on one side. then looking very much at the issue and then it's more traditional crime and this is used and then there's access to it. all of the board members agree there's a restriction and those range. members wrote that they thought that a collum of approval and the agent that was not in that foreign intelligence and that they wanted to have the approval of the kind of queries.
5:51 am
it's a difficult question and it's something in the board. >> did you take a different view of the application of the constitution to foreign intelligence verses nonforeign and crimes on the u.s. soil in saying that well, if you need supervisory review for nonforeign intelligence crimes because you thought -- or did they think there was a lesser standard because of some additional leeway in the national security space or were you aapply for the standard for foreign intelligence crimes occurring on the soil? >> so the entire constitutional analysis is under the circumstances test, and the board made clear that it's similar to the policy and they did not ultimately draw and in this context to looking at the fbi queries, it's how the
5:52 am
members weigh the consideration. that's for the intelligence purpose and that's the predicate that they're showing when doing it in the first instance. when you look at a secondary use for not a foreign intelligence crime. it's more divorced from what is showing from what you made at the front end and that's where they felt the additional protection is because it was further removed from the intelligence collection. >> can i just make a point about the baselines and status quo. one is any time that the government gets evidence about any american, you need a warrant. another is to do it in all kinds of ways without a warrant. when 702 is related to information you may pick up of a crime from someone walking down the street or the united states or paris, then they're wear of
5:53 am
the information and it does not need a warrant. you have to decide whether 702 touches and the u.s. person goes to warrant and whether some of it is stuff that they stumble. you can have a really different view on whether you think it's natural for the government to see it from the other eyes or whether you need a warrant to get the access and 702 is in the middle because it's a foreign for the information that's collected and then that's the vacation that's happening outside of the united states. that's a long way toward nonwarrant land. if you assume it's nonwarrant, then guys are pushing back from people that are not warrants. >> time for one more here. >> green marcus and national press club and just quickly thank you for bringing up the issue of the journalists and american journalists and the u.s. sources et cetera et cetera so two quick questions and one is were first amendment issues
5:54 am
addressed in any of the discusses and did anyone bring up the impending national shield law that congress has been batting about for a while and held up by the revolutions and the revelations and the national shield law. whether that ever came up. the second part is less important than the first. >> that sort of addresses the first amendment questions. what i would say is that those when you're looking at the question of privacy and the first amendment and, you know, the natural next steps and so depending on the type of information that you're collecting and the type of uses you really -- it does match nicely in the terms of analysis
5:55 am
and what they are. if the government has not connected information, you're not going to have those concerns. ppd 28 was really putting that out there to address the foreign communities in those questions. >> and one other thing to the extent that a lot of the rules are to protect the democracy for the abuse and the surveillance. that's got a lot do with the amendment. whether you and your friends can decide what you want to do and take the action politically. the first amendment are in the reo port as part of how you try to keep the democracy from being abused. >> well i hope that you all will join me in thanking the fantastic group for the lively discussion. [ applause ] when you grow up in an
5:56 am
environment like i did, you need a lot of people to play heroic role in your life to have a chance. i had my aunt and my sister and others. this is really the story of how they impacted my life in a lot of positive ways. >> sunday night, the author walk the growing up in a poor white family that has its roots in an appalachian a. >> so there wasn't this connection between education is that opportunities. even the people who did pretty well in school didn't necessarily make a whole lot out of themselves. you saw so many people not really making or having the opportunities, it was hard to believe the school really mattered that. . >> sunday night at 8:00 eastern on q & a. >> next week, american history tv in prime time. monday, we look at the history of congress. first, the former senators, bob
5:57 am
dole and nancy castlebon. the national historic preservation act. and the thomas edison statue in the u.s. statuary hall. next week c-span3. starts monday at 8:00 p.m. eastern. if you missed any of the presidential debate, go to c-span.org using your desk top or tablet. you can watch the entire debate choosing between the split screen or the switch camera options. you can even to go specific questions and answers from the debate. finding the content you want quickly and easily and use our video clipping tool to create clips of your favorite debate moments to share on social media. krx spann.org original your desk top, phone or tablet for the presidential debate.
5:58 am
the federalist society held a discussion on political polarization and the role of pluralism in the u.s. we'll hear from lawyers and academics in this two-hour long discussion. the . >> on behalf of the religious freedom center of the newseum institute, i want to welcome you to our humble abode. we also welcome our c-span viewers and those of you joining us via abc news.com. well, thank you all for being here. i think we can all agree is a timely and much needed discussion about one of the most challenging questions of our
5:59 am
time. and that is, of course, how will we live with our deepest differences? >> we are very pleased. i would like to you please join me in acknowledging the president of the federalist society who is here with us today. modestly in the back. and a special thank you to the john templeton foundation for helping to make this possible. >> i haven't seen david but if he is here, i want to acknowledge him. let's acknowledge the john templeton foundation for their support. captions copyright national cable satellite corp. 2008
6:00 am
captioning performed by vitac

54 Views

info Stream Only

Uploaded by TV Archive on